ADVOCATES:Jonathan E. Nuechterlein - Department of Justice, argued the cause for the respondentStephen D. Shawe - Argued the cause for the petitioner

Facts of the case

In 1990, Mack Trucks, Inc., sold its Allentown, Pennsylvania, branch to Allentown Mack Sales, Inc. A number of Mack employees made statement to the new owners suggesting that Local Lodge 724 of the International Association of Machinists and Aerospace Workers, AFL-CIO, had lost the support of bargaining-unit members generally. Subsequently, Allentown refused Local 724's request for recognition and commencement of collective-bargaining negotiations. Allentown, under a National Labor Relations Board (NLRB) precedent, claimed a good-faith reasonable doubt as to the union's support in order to conduct an internal poll of employee support for the union. The employees voted 19 to 13 against the union. Local 724 then filed an unfair-labor-practice charge with the NLRB. Ultimately, an Administrative Law Judge held that Allentown's poll was conducted in compliance with procedural standards, but that Allentown did not have an "objective reasonable doubt" about the majority status of the union. The Court of Appeals enforced the NLRB's order for Allentown to recognize and bargain with Local 724.

Question

Is the National Labor Relations Board's "good-faith reasonable doubt" standard for polling employees on union support rational and consistent with the National Labor Relations Act? Is the NLRB's factual determination that Allentown Mack Sales, Inc. lacked such doubt supported by substantial evidence in the record?

William H. Rehnquist:

We'll hear argument next in Number 96-795, Allentown Mack Sales and Service v. National Labor Relations Board.

Mr. Shawe.

Stephen D. Shawe:

Yes, Mr. Chief Justice, and may it please the Court:

Picking up on the commentary in Curtin Matheson, this case brings to the Court's attention the issue of whether deference to the board is owing when the board applies the same standard to three different approaches to challenging a union's continuing majority status.

In Curtin Matheson this Court acknowledged the board's oft-articulated standard that an employer can withdraw recognition from an incumbent union if 1) the union has in fact lost its majority status, or 2) the employer has, based on objective considerations, reasonable grounds to doubt the union's continued majority status.

The second test supposedly can be satisfied by a lower threshold of proof, although the board typically requires clear, cogent, concise articulations by individual employees disaffected totalling a majority, or a head count.

But conducting a secret ballot poll is not the same as withdrawing recognition.

Obviously, in the withdrawal of recognition the employer has preempted any vote.

In contrast, a secret ballot poll assuming fairness consistent with the board's Struksnes standards permits of the possibility that a majority will vote in favor of continued union representation, and the board in Texas Petrochemicals and its brief disclaims any interest or desire to do away with employer polls.

The board's standard for permitting an employer to take the grave and precipitous step of withdrawing recognition should not at the same time be applied in the contradictory context of secret ballot polling.

David H. Souter:

Well, why is it contradictory?

I mean, I thought there was a rational structure for all of this along the following lines:

The board says, we're at the point at which the presumption is no longer absolute.

The employer in effect is going to be given three options, subject to the same condition, probable cause to believe.

The three conditions, the three options, however, have varying risks.

If the employer simply withdraws recognition and turns out to be wrong, the repercussions are presumably going to be very great.

If the employer asks for an election, perhaps the repercussions may not be so great, but they're going to be serious.

If the employer decides to take a poll, the repercussions... and loses, the repercussions perhaps will not be quite so great.

That's not quite so disruptive.

What is irrational about saying, subject to the same fact premise, the employer is going to be given an option of going A, B, or C, depending on the degree of risk that the employer wants to run if the employer turns out to be wrong?

Stephen D. Shawe:

Well, I don't--

David H. Souter:

How is that irrational?

Stephen D. Shawe:

--No, I don't... I think it's not rational, given the predisposition of the board... the court, me, the... everyone, that a poll or an election is a much, much better preferred test to measure employee sentiment than what is... what has been for 40 years the board's articulated standard in Celanese that an employer can withdraw without a poll.

William H. Rehnquist:

I understood your claim to be here... if... perhaps it's a claim of irrational... that the board's requirements for taking a poll are so stringent that they almost make a poll unnecessary.

Stephen D. Shawe:

Well, they make it irrelevant, a legally irrelevant act, the board's regulatory scheme that accepts as valid a secret ballot poll only, and only if the employer has so much evidence before taking the poll that it could have withdrawn recognition without it.

David H. Souter:

Well, are you saying that if the... if the standard of cause that were applied to each of these three options were something less than what you characterize as the head count, that there would be nothing irrational, nothing to... nothing really to object to in having the three options subject to the same factual condition?

Stephen D. Shawe:

Well, I suppose a reasonable doubt, if it were different from a head count and, indeed, it were applied as if it were the totality of the circumstances, perhaps the complaint wouldn't be so vehement, but--

David H. Souter:

Well, but would it be... would the scheme be irrational?

Stephen D. Shawe:

--Yes, I think it would be irrational to mandate the same requirement--